Both
plaintiffs are employees of the Reserve Bank of Zimbabwe. On 21 October 2008
they were travelling from Mutare to Harare in a Toyota Camry registration
number ABF 9500 in the course of duty. After the Mutare River Bridge, and at
the 235.5 kilometre peg, their motor vehicle had a violent collision with a
vehicle driven by the second defendant and insured by the first defendant.
Both
plaintiffs sued both defendants for damages arising from the second defendant's
alleged negligent driving. The first plaintiff's claim was for US$125,000= plus
costs and interest; whereas that of the second plaintiff was for US$190,000= as
well as interest and costs of suit.
In
its pleadings the first defendant omitted to plead that the plaintiffs' claims
were limited to claims sounding in Zimbabwean Dollars only in terms of the
second defendant's insurance policy cover.
The
first defendant has now filed a chamber application for an amendment seeking to
incorporate the plea limiting the plaintiffs' claims to the Zimbabwean Dollar
currency only.
The
application is opposed mainly on the basis that the applicant is seeking to
withdraw an admission.
The
applicant has not filed an affidavit from its then lawyers explaining the
omission. The applicant has, however, sought to explain the omission by saying
that although they gave their erstwhile legal practitioners specific written
instructions to incorporate the plea they inexplicably or inadvertently omitted
to factor in the plea.
The
general rule concerning amendments of this nature was spelt out in Moolman v
Moolman & Another 1927 CPD 27…, where WATERMEYER J observed that-
“…,
the practical rule adopted seems to be that amendments will always be allowed
unless the application to amend is mala fide or unless such amendments would
cause an injustice to the other side which cannot be compensated by costs or,
in other words, unless the parties cannot be put back, for the purposes of
justice, in the same position they were when the pleading it is sought to amend
was filed.”
WESSELS
J had previously, in Rishton v Rishton 1912 TPD 718, quoted with approval the
dicta in Clarapette and Co. v Commercial Union Association (3 WR) 262…, to the
effect that -
“However
negligent or careless may have been the first omission and however late the
proposed amendment the amendment would be allowed if it can be made without
injustice to the other side, there is no injustice if the other side can be
compensated by costs.”
It
is clear to me that the object regarding the Rules regulating the amendment of
pleadings is to do justice without muzzling or prejudicing either part. Rule133
seeks to give effect to that object by providing that-
“Subject
to Rules 134 and 151, failing consent by all parties, the court or a judge may,
at any stage of the proceedings, allow either party to alter or amend his
pleadings, in such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose of determining the
real question in controversy between the parties.”
In
this case, the cardinal issue between the parties is the extent of the first
defendant's liability towards the plaintiffs in terms of its indemnity
insurance with the second defendant. In my view, an amendment which seeks to
assist in the determination of the extent of the plaintiffs' quantum of damages
can hardly be said to be unjust or prejudicial to either party. On the contrary,
failure to factor in the amendment may result in gross injustice. This is for the
simple reason that there can be no justice in this case without determining the
extent of the applicant's liability according to law.
That
being the case the application can only succeed.
It is accordingly
ordered:
1.
That para 2 of first defendant's plea in Case No: HC2938/09 be and is hereby
amended to read: “Admitted, to the extent that the Insurance Cover extended to
second defendant (the insured) was in Zimbabwean Dollars. The policy will cover
any third party liability arising and sounding in Zimbabwean Currency. The
contract between first and second defendants did not extend to covering
liability sounding in foreign currency. Wherefore, in the circumstances, first
defendant denies liability as plaintiffs' claims are in United States Dollars.
2. Costs are to be costs in the cause.
